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Potter v. Sanborn.

The phrase “not in this state,” is the only expression found in any statute relating to the continuance or adjournment of cases of foreign attachment from the year 1784 to the present time, and it has always been understood as including persons not inhabitants or residents of the state. See the preamble to the original act in the statutes of 1784.

In Strong v. Barlow, Kirby, 376, decided in 1788, the judgment of the Court of Common Pleas was reversed because it had rendered judgment at the first term in a suit by foreign attachment against one not an inhabitant of the state. The duty of the court to have continued the case was predicated wholly on the expression we are considering. There was no controversy or doubt that the defendant, being an inhabitant of another state, was therefore "not in this state.” This was assumed to be too clear for argument. The question was whether the court below was relieved from the duty to continue the case by the fact that the garnishee had appeared at the first term and had made defence for the original debtor. It was held that the statute as it then existed did not authorize the garnishee to appear in such a case, and hence it did not fall within the exception mentioned as authorizing judgment at the first term, but that the court should have continued the case under the general provision referred to. See also Swift's System, vol. 2, p. 178, where Judge SWIFT, in reciting the substance of the provision referred to, says—“but if the defendant be not of this state," &c.

We advise the Superior Court that there is manifest error in the judgment complained of, and that it should be reversed.

In this opinion the other judges concurred.

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A testator made a will, giving sundry pecuniary legacies to relatives who

were his heirs at law. A few months later he gave to each of the legatees the amount of the legacy, and took from each a receipt for the same in full of all his rights under the will, with an agreement by which each bound himself and his heirs not to take any proceedings to set aside any will that he should leave. One of these legatees died before the testator, leaving a son, who after the death of the testator took an appeal from the probate of his will. Held that he was not estopped from taking the

appeal by the agreement of his mother. The ground upon which it was sought to set the will aside was unsound

ness of mind in the testator. In proof of his sanity the appellees offered in evidence a series of annual accounts, kept by a person whom he employed to manage his property, running from a time ten years before the making of the will to that of his death thirteen years after it was made, showing in detail all investments and all receipts and payments, and which were submitted to the testator's examination. These accounts the counsel for the appellees proposed to read to the jury, for the purpose of showing the minute and intelligent attention which the testator gave to his affairs. The counsel for the appellant offered to admit that the accounts were correct, and the court ordered that they be laid in unread, for the jury to examine if they desired, except so far as the counsel desired to call their attention to any particular item or items. Held to be error, since the object of the appellees could not be effected without laying the accounts before the jury in all their details and con

nection, and the question was not at all whether the items were correct. The particular unsoundness of mind that was claimed was that of a belief

on the part of the testator in communications from spirits in the other world, and that he had been directed by them as to the disposition of his property. By his will he gave about half his property to the town of S, where he lived, for a fund to be named after him, half the interest of which was to be used for the poor of the town who were not town paupers, and the other balf to be paid over to a society of spiritualists in the town, with a provision that if the town did not accept the legacy

the whole should go to the spiritualist society. Held1. That evidence was not admissible on the part of the contestants of the

will that the spiritualist society had become reduced to a very few persons and did not keep up its meetings. So long as the society was not extinct its feeble condition or insignificance was no ground for im

peaching the will. 2. That evidence was not admissible on the part of the contestants that

the town of 8 had voted to refuse to accept the legacy. The action of the town could not have any bearing on the validity of the will.

APPEAL from a decree of probate approving the will of

Billings's Appeal from Probate.

Calvin Hall; taken to the Superior Court in Tolland County, and tried to the jury before Martin, J. Verdict for the appellant, and motion for a new trial by the appellees for error in the rulings and charge of the court. The case is sufficiently stated in the opinion.

J. L. Hunter and B. H. Bill, in support of the motion.

A. P. Hyde and M. R. West, contra.

PARK, C. J. This is an appeal from a probate decree approving the will of one Calvin Hall. The jury in the Superior Court rendered a verdict against the validity of the will, and the appellees have moved for a new trial for error in the rulings and charge of the court.

The will was made in the year 1866, at which time the testator was eighty years of age. His wife had died several years before, and he had no children. At the time of the execution of the will his property amounted to from $20,000 to $25,000. By the will he gave ten thousand dollars to seven near relatives who were his heirs at law. A few months after he made a gift to each one of them of the amount of the legacy or its equivalent, and made a codicil revoking the legacies. At the time of making these gifts he took from each a receipt in full of all claims under the will, with an agreement binding each one, for himself and his heirs, not to interfere with the settlement of the estate or attempt to invalidate his will. One of these relatives was Martha A. Billings, the mother of the appellant. She died before the testator. The appellees claimed that the appellant, as her heir, and taking his interest through her, was estopped from asserting his rights as heir at law of the testator in attempting to set aside the will. The court ruled against this claim.

This ruling was clearly correct. The appellant was heir at law of the testator in his own right, not as heir of his mother. She had died before the testator and had ceased to be an intermediary between them, leaving him to take

VOL. XLIX—58.

Billings's Appeal from Probate.

directly and in his own right from the testator. There is, at first view, some plausibility in the claim that the appellant, being heir of his mother, is estopped as privy in estate by that which would estop her; but such an estoppel affects the heir only as privy in estate and as a condition impressed upon the estate which passes to him as heir. But it is not found that the property received by the mother from Mr. Hall passed to him. She may have expended it in her life time, or disposed of it to some one else by gift or will. If the appellant is estopped at all it must be wholly by reason of the mere contract of his mother, and such a contract affects no one but the maker. A contract that neither she nor her heirs should dispute the will would still be only her contract and create no obligation or liability on the part of her heirs. Mr. Hall could have made the gift to the mother conditional on the acquiescence of herself and her heirs in his will, but could not have got from her in any way, by mere contract, an obligation that would be binding personally upon her heirs as well as herself, and she could not impress upon the share of the estate of the testator which would have come to her as his heir, any character or condition that would affect it when it came to her heirs. She had no interest in that property before her death, and as she died before the testator she never had any interest in it at all. So that when the appellant is asserting the rights of an heir, he is asserting no right of hers, but one wholly his own, not received through her and over which she had no control.

The ground upon which the appellant sought to set the will aside was that of an insane delusion operating upon the mind of the testator at the time he made his will, and rendering him incompetent. For the purpose of showing the entire sanity of the testator at this time, especially as evidenced by his intelligence with regard to his own affairs and the details of his property and its management, the appellees introduced the evidence of Dr. Hamilton, who testified that about the year 1855 the testator requested him to take charge of and manage his property for him; that he

Billings's Appeal from Probate.

consented to do so; that the testator thereupon delivered to him all his personal property, consisting mostly of notes and bonds of which there was a large number; that he continued to have charge of the property, collecting and reinvesting the principal and collecting and paying over to the testator the income, from 1855 down to his death in 1879; that he drew his will for him in 1866, and the codicil soon after; that he annually rendered an account for the testator's examination, giving the name of the maker of each note and its amount, and stating the collections and investments during the whole period; and that he had these accounts in court. The appellees' counsel then requested the witness to read the accounts, for the purpose of showing the careful and intelligent attention which the testator gave to minute details with regard to his business affairs; but the court, upon the objection of the appellant's counsel, who offered to admit the correctness of the accounts, refused to allow them to be read to the jury, but required them to be laid in unread, except so far as the appellees' counsel might wish to call their attention to or inquire of the witness as to any particular item or items of the account. We think the court erred in this ruling. The question was not at all whether the accounts were correct. Nor was it a question of any particular item or items. The object of laying the accounts before the jury was to show how minute they were in details, and how presumably sane the mind of the testator must have been when he went over thus minutely the particulars of his property and of its management, and kept himself so well informed with regard to his business affairs. It was the right of the appellees that this evidence in all its details and connection should be brought to the attention of the jury; and we think it may have failed to produce its proper impression on their minds when, under the order of the court, it was simply laid in in a mass, and left for them to examine or not as they should feel inclined.

The will in question gave $10,000 to the relatives before mentioned, $500 in another legacy, and the rest of the

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